Patterson et al., vs. Cobb et al.-Opinion of Court.

a cause is tried against an executor on an open account against the deceased testator, to expunge from the account every item which shall appear to have been due five years before the death of the testator, and this, of course, without reference to the state of the pleadings.

It is also urged by appellants counsel that the statute of limitation does not run where there are mutual accounts and reciprocal demands. This is correct, but the case at bar is not such a case; the principle is founded on the exception in the statute in favor of such accounts as concern the trade of merchandise between merchants, and has never been extended beyond the direct concerns of trade, in cases of accounts current between the parties, in which there are reciprocal charges and credits. Here there is no account current, but the claim of the appellants rests upon matters stated and settled by written memoranda and receipts.

We are well satisfied that at the time of the death of Exum, the debt claimed by the appellants was not a subsisting debt or demand against his estate, because of the bar of the statute; that the bar has not been removed by the alleged promise of the executor for want of power to bind the estate by such promise, and that this point of defense is fatal to this cause.

It is not deemed necessary to decide any of the other points raised by the pleadings, and discussed in the argument.

Let the decree of the court below be affirmed, with costs.

ERRATA.

Page 21, line 24, for Sever read Laver.

66

48, line 12, for Alderson read Adolphus.

60, line 39, after the word "call," supply the words "to account."

Page 81, line 6, for 3d Reports, read 3d Rawles Reports.

Page 111, line 5, for "or," read "and."

126, line 21, for "last," read "first."

151,line 14, for "Atkinson," read "Atkyns."

197, line 14, for "Alderson," read "Adolphus."
283, line 16, for "former," read "latter."

INDEX

TO FOURTH VOLUME OF FLORIDA REPORTS.

ACCOUNT.

1.

A book account, in this State, is not admitted as evidence of the sale
and delivery of the goods, even though it may be proved that the
account sued on is an exact transcript from plaintiff's books, and
that they were fairly and honestly kept.

2. So also the testimony of a witness that he knew of the delivery
of a part of the articles charged to defendant, and another part
to defendant's overseer, without any evidence as to the partic-
ular articles, or their value, is not sufficient to justify a judg-
ment for plaintiff for any amount. Higgs vs. Shehee, 383.

ADMINISTRATOR DE BONIS NON.

1.

2.

3.

An administrator de bonis non cannot call to account a removed
executor, and charge him with a devastavit as to the goods and
chattels of his testator which have come to his hands.

by

The title of an executor in the effects of his testator is derived
from the will, and exists independently of the letters testamen-
tary; and so far as it relates to money collected and goods re
duced into possession, and converted, cannot be divested
the revocation of the letters testamentary. The revocation of
letters testamentary, and the appointment of another adminis-
trator, can only have relation to the goods not reduced into
possession, and to choses in action not recovered. As to goods
reduced to possession, a removed executor holds them-not as
his own, but as trustee for the creditors, legatees and distribu-
tees of his testator, and to them he is accountable. The ad-
ministrator of a deceased executor occupies precisely the same
position, and is a trustee for the same persons, as the goods or
effects reduced to the possession of the executor.

The commission of an administrator de bonis non gives him no
warrant to demand from a removed executor or administrator
any other goods or effects than those which were the goods
and chattels of the testator or intestate at the time of his
death.

4.

Index to Fourth Volume.

An administration is correctly defined to be a "change, alteration or conversion" of the goods of the testator or intestate, and by this is meant a change in the property, not a change in specie. An administrator de bonis non takes possession of the goods and chattels of the testator or intestate which remain in specie and unadministered. He is appointed to finish what is

left unfinished, and for no other purpose.

5. Creditors have a right to sue the representative

of a deceased

executor, or a removed executor, for a debt of the original testator, without having first obtained a judgment against the executor in his life time, and heirs, legatees and distributees can assert their rights against the same persons. Gregory, administrator de bonis non, vs. Harrison, 56.

ADMINISTRATORS AND EXECUTORS.

1.

2.

3.

4.

5.

Executors have no authority to invest money belonging to the estate of their testators on personal security. If they do so, it is at their hazard and on their own responsibility. They are personally liable if the security proves defective.

The statute of this State requires executors, administrators and guardians to take mortgage security for the money of minors invested by them, and this power must be exercised under the direction and with the sanction and approval of the Court of Probate.

When the accounts of executors or administrators are finally adjusted and closed, it is their duty to pay over to the guardian of the minors their distributive share, and not loan it out, (in money,) even on mortgage security.

Bank bills are treated as money, and it is not to be presumed that the Legislature, in using the word money, meant only gold and silver. It was not intended that executors and administrators should treat such bills as other personal property, and sell them at public outcry.

Where executors or administrators treat bank bills left by a deceased person as money, if they invest in a mode not in accordance with the directions of the law, even though they act in good faith and with an honest purpose of benefitting the estate, they are responsible for any loss that may ensue from exercise of such discretion in a manner not warranted by the law. Moore & Montford vs. Hamilton, 112.

See Estate, 2, 3, 4.

AGENT.-See Principal and Agent, 1, 2. See also Corporation.